RAM MANGAL PRASAD SHAHI Vs. ACHHAIBAR PRASAD SHAHI

JUDGEMENT

(1.) Defendant No. 1 is the appellant. The only question raised in this appeal is whether the suit is barred by limitation. The suit had been brought on the basis of a mortgage bond, dated 17-6-1930, for a sum of Rs. 1500/-, executed by defendant No. 1, the appellant, in favour of one Kishun Prasad Shahi, father of plaintiff No. 1. The suit was filed on 10-11-1944, and the due date for payment of the mortgage money was 30th Baisakh 1358 Fasli, corresponding to 2-6-1931. The suit, which is obviously barred by time, is sought to be saved by an acknowledgment of liability, under Section 19 of the Limitation Act, made in another mortgage pond, executed by defendant No. 1 on 15-11-1932, in favour of the Kapildeo Narayan Shahi. Both the Courts below have held that the suit is not barred.

(2.) Mr. Prem Lall, learned counsel appearing on behalf of the appellant, has made three points for consideration by this Court: 1. that an acknowledgment to be an effective acknowledgment, under Section 19 of the Limitation Act, must be communicated to the mortgagee, and, unless it is so done, it is not an acknowledgment in law under Section 19; 2. that there is a difference between an acknowledgment of debt and an acknowledgment of liability, and that, in the present case, the acknowledgment was merely of the debt and not of any subsisting liability; and

(3.) that, even if it be held that the acknowledgment in question was an acknowledgment of liability, the acknowledgment must be limited to the liability to pay Rs. 325/- only, as is specifically mentioned in the said bond of 1932. The relevant portion of the recital in the mortgage bond dated 15-11-1932 (Exhibit 1), which, according to the plaintiffs, contains an acknowledgment of liability, runs as follows: